Right To Property Can’t Be Taken Away Without Adopting Due Process Of Law: J&K&L HC Directs Action To Be Taken Against Former Deputy Commissioner
The Jammu and Kasmir and Ladakh High Court was considering a petition of a man whose property was taken over by the Authorities.
The Jammu and Kashmir and Ladakh High Court has asked the Principal District Judge to consider launching appropriate criminal proceedings against the former Deputy Commissioner, Ganderbal, for having filed a false written statement before the Court in the suit filed by the petitioner-owner of a commercial complex.
The petitioner filed the Petition challenging the communication issued by the Additional Deputy Commissioner in terms whereof property comprising a six-storied commercial complex, namely, “Namroze” was taken over by the said respondent and a post facto sanction had been sought for the said action from the Official respondent.
The Single Bench of Justice Sanjay Dhar asserted, “The Courts generally trust the statements of public officers given by them in their pleadings at their face value as there is a presumption of correctness attached to the pleadings filed by the public officers in the course of their official duties but the present case is a classic example of a public officer filing misleading pleadings before the Court just to defeat the rightful claim of a litigant.”
Senior Advocate Syed Faisal Qadiri represented the Petitioner while Dy. AG Syed Musaib represented the Respondent.
Factual Background
The Petitioner, leased out a six-storied building, to respondent No.6–Central University, Kashmir, by an agreement to operate a hostel for its students and the said agreement came to be extended from time to time. As per the terms of the rent agreement, the University was to hand over possession of the building to the petitioner but before that, the building was taken over forcibly by District Administration, Ganderbal, without any consent of the petitioner.
Considering the fact that the building was not handed over back to the University, the University refused to pay rentals to the petitioner. The petitioner was, accordingly, asked to take up the matter regarding payment of rentals with the District Administration. The Petitioner filed a Civil Suit seeking an injunction against the respondent Central University as well as the District Development Commissioner. In the meantime, an impugned communication came to be issued by respondent No.5 (Additional Deputy Commissioner) seeking post facto sanction from respondent No.3 (Divisional Commissioner) for occupying the building belonging to the petitioner and for release of rentals in his favour.
Reasoning
The Bench took note of the admitted fact that the building in question was taken over by respondents for housing certain protected political persons. This was done without the execution of any rent agreement and without any formal order. It was also noticed that the University had cleared the dues on account of electricity charges as well as rentals upto the period they were in the actual possession of the building in question.
According to the District Development Commissioner & Additional Deputy Commissioner (respondents No.4 and 5), they were liable to pay use and occupation charges only from March 3, 2023, to June 6, 2024, to the petitioner. However, the petitioner claimed that he is entitled to claim use and occupation charges at least at the rate that he was getting from respondent Central University in terms of the lease agreement along with charges relating to the consumption of electricity by the occupants of the building.
The Bench said, “...it is a case where his building has been taken over forcibly by respondents No.1 to 5 without his consent, that too when a lease agreement between the petitioner and respondent No.6 was subsisting and the building was in occupation of the tenant i.e. respondent No.6.”
“Right to property is a constitutional right guaranteed under Article 300A of the Constitution of India and the same cannot be taken away without adopting due process of law but in the instant case, respondents No.4 and 5 have taken over possession of the building in question without even informing the petitioner not to speak of obtaining his consent”, it further added.
The petitioner was not aware as to who has the building in question and it was only during the course of civil suit filed by him before the Principal District Judge, that he came to know from the report of the Commissioner that the building is occupied by the District Administration. It was further stated that the then Deputy Commissioner, Ganderbal, filed a palpably false that the building in question was not in occupation of the District Administration. “This stand of the Deputy Commissioner is contrary to the stand of the respondents taken in this writ petition. This conduct of a responsible officer of the Government is reprehensible and shows that the said officer has no respect for rule of law. The officer concerned did not think twice before filing a false written statement before the learned trial court with a view to defeat the claim of the petitioner”, it added.
As per the Bench, the then Deputy Commissioner deserves to be proceeded against for having filed a false pleading before the District Judge. Considering how the petitioner’s property was snatched away from him, the Bench asked the Respondents to pay the petitioner the rent for the use and occupation of the building in question and also clear the electricity and water charges.
“The learned Principal District Judge, Ganderbal, shall consider launching of appropriate criminal proceedings against the then Deputy Commissioner, Ganderbal, for having filed prima facie false written statement before the said Court in the suit filed by the petitioner”, it concluded.
Cause Title: Abdul Majid Sofi v. UT of J&k and Others (Case No.:WP(C) No.2907/2022)
Appearance:
Petitioner: Senior Advocate Syed Faisal Qadiri, Advocate Sikandar Hayat Khan
Respondent: Dy. AG Syed Musaib
